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Marra v. Commissioner of Correction

Court of Appeals of Connecticut

July 4, 2017

THOMAS MARRA
v.
COMMISSIONER OF CORRECTION

          Argued January 17, 2017.

         Appeal from Superior Court, judicial district of Tolland, Oliver, J. [motion for permission to amend pleading]; Sferrazza, J. [judgment].)

         Procedural History

         Two petitions for writs of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the cases were consolidated; thereafter, the court, Oliver, J., granted the petitioner's motion for permission to amend his pleading; subsequently, the court, Sferrazza, J., rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court. Improper form of judgment; judgment directed.

          Cheryl A. Juniewic, assigned counsel, for the appellant (petitioner).

          Emily D. Trudeau, assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, for the appellee (respondent).

          Keller, Prescott and Harper, Js.

         Syllabus

         The petitioner, who had been convicted in two separate criminal cases of multiple offenses, including conspiracy to commit kidnapping in the first degree, attempted kidnapping in the first degree, and murder, sought writs of habeas corpus, claiming that his attorneys in both cases had rendered ineffective assistance. The cases were subsequently consolidated. The day before his habeas trial was set to begin, after multiple postponements, the petitioner filed a withdrawal of the habeas action. Despite the filing, the habeas court required the petitioner to appear the next day, with counsel, and canvassed the petitioner on the record regarding his decision to withdraw the case. The habeas court noted the withdrawal and deemed it to be with prejudice. Less than one month after he withdrew the habeas action, the petitioner filed another petition for habeas corpus, claiming ineffective assistance of his prior habeas counsel for their failure to adequately challenge the effectiveness of the petitioner's trial and appellate counsel in the underlying criminal cases. The trial court rendered judgment dismissing the petition after hearing evidence on the respondent Commissioner of Correction's special defenses, including deliberate bypass, by which the court can deny relief to a petitioner who has intentionally given up rights or privileges by bypassing orderly court procedure and surrendering any remedies. The trial court concluded that the deliberate bypass doctrine applied, therefore depriving the court of subject matter jurisdiction. On the granting of certification, the petitioner appealed to this court, claiming that the trial court improperly gave preclusive effect to the ruling of the prior habeas court that the petitioner's withdrawal was with prejudice because no hearing on the merits had commenced pursuant to statute (§ 52-80), and that the trial court improperly concluded that the doctrine of deliberate bypass barred his action.

         Held:

         1. The trial court did not impermissibly rely on the prior habeas court's ruling that the petitioner's withdrawal was with prejudice, but, rather, made its own independent ruling on the merits under the circumstances to determine that the petitioner could not maintain the present action: the petitioner's waiver of his right to go forward with the habeas trial was made expressly and on the record before the prior habeas court, the petitioner participated personally in the decision to withdraw the petition and signed the withdrawal form after consultation with his attorney, and the prior habeas court's canvass made abundantly clear that the decision to terminate the case was the petitioner's, made knowingly and without force or pressure; furthermore, the petitioner engaged in procedural chicanery by filing the petition in an attempt to undermine the order of the prior habeas court, and such gamesmanship is a limitation on the general rule that a party has a right to unilaterally withdraw litigation prior to a hearing on the merits.

         2. This court did not address the issue of whether the trial court improperly applied the deliberate bypass doctrine, as it was not necessary to reach that claim because of the resolution of the petitioner's first claim; this court concluded, however, that the form of the trial court's judgment was improper because the trial court's determination that the prior habeas action should be deemed to be withdrawn with prejudice did not implicate the subject matter jurisdiction of the court, and as such, the trial court should have denied, rather than dismissed, the petition.

          OPINION

          PRESCOTT, J.

         The petitioner, Thomas Marra, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the habeas court improperly dismissed his eighteen count petition, which alleged claims of ineffective assistance of counsel against his prior habeas attorneys, because the court improperly (1) relied on a decision of the prior habeas court deeming his withdrawal of that action as being ‘‘with prejudice'' and (2) concluded that the deliberate bypass doctrine barred his action. We conclude that only the form of the habeas court's judgment is improper and, accordingly, reverse the judgment on that limited ground.

         The record reveals the following relevant facts and procedural history of this habeas appeal, which derives from two separate criminal cases and their subsequent posttrial proceedings. With regard to the first case (Noel case), the petitioner was found guilty, following a jury trial, of one count of conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 and 53a-92 (a) (2) (A), two counts of attempted kidnapping in the first degree in violation of General Statutes §§ 53a-49 and 53a-92, one count of arson in the second degree in violation of General Statutes § 53a-112 (a) (1) (B), two counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (1), and one count of accessory to kidnapping in the first degree in violation of General Statutes §§ 53a-8 and 53a-92 (a) (2) (A). State v. Marra, 215 Conn. 716, 718-19, 579 A.2d 9 (1990). He was subsequently sentenced to sixty-five years of incarceration. Id., 719.

         The relevant facts underlying the Noel case are discussed at length in our Supreme Court's opinion affirming that judgment. They may be summarized as follows.

         Sometime during 1981, the petitioner began operating a criminal enterprise that involved selling stolen automobiles to J. W. Ownby, who lived in Kansas City, Missouri. Id., 720. In 1982, the petitioner hired Richard Noel, the victim, to drive the stolen automobiles to Ownby, and Ownby and Noel developed a friendly relationship. Id. In 1983, Ownby terminated almost all of his dealings with the petitioner and began dealing primarily with Noel. Id. The petitioner became ‘‘aggravated'' with the situation, and his relationships with both men deteriorated. Id.

         In November, 1983, during the course of a police investigation into auto theft in the Bridgeport area, Noel implicated the petitioner in statements to the police, and the petitioner later became aware of Noel's conversations with the police. Id., 721. On January 23, 1984, a neighbor of Noel ‘‘awoke at approximately 2 a.m. to the sound of a male voice, coming from outside, screaming: ‘No, no!' ''; observed two men quickly carrying the limp body of another man, presumably Noel, by his arms and legs down the sidewalk toward a parked van in which they tossed him; and, later that morning, ‘‘observed a large puddle of blood near the door of the building, a clump of dark brown hair near the puddle, blood splattered from the puddle over to the place where the van had been parked, and a set of keys.'' Id., 722-23. The petitioner later burned the van, and he and his associates dumped a barrel, presumably containing Noel's body, into the harbor in Stratford. See id., 723-24.

         Subsequently, the petitioner enlisted some of his associates to participate in a scheme to steal money from Noel's bank account, which continued until the bank closed the account in March, 1984. See id., 724-25. In addition, the petitioner filed a lawsuit to collect on a promissory note in the amount of $18, 000 on which Noel appeared as the maker and the petitioner as the payee; that suit resulted in a judgment in favor of the petitioner. Id., 725.

         As previously indicated, the petitioner appealed from his judgment of conviction, and our Supreme Court affirmed the judgment of the trial court. See id., 739. Thereafter, the petitioner filed a petition for a writ of habeas corpus, alleging ineffective assistance of trial and appellate counsel in the Noel case, and the habeas court, Bishop, J., dismissed the petition and denied the petition for certification to appeal. Marra v. Commissioner of Correction, 51 Conn.App. 305, 305, 721 A.2d 1237 (1998), cert. denied, 247 Conn. 961, 723 A.2d 816 (1999). The petitioner subsequently appealed the habeas court's decision to this court, and this court dismissed the appeal. See id., 310.

         With regard to the second case (Palmieri case), the petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a (a) and sentenced to sixty years of incarceration. State v. Marra, 222 Conn. 506, 508, 610 A.2d 1113 (1992). The relevant facts underlying the Palmieri case were set forth in our Supreme Court's opinion affirming that judgment as well.

         ‘‘On February 6, 1984, the [petitioner] asked [Nicholas] Byers to drive the fifteen year old victim, another associate of the [petitioner], to the [petitioner's] house later that day. At the same time, the [petitioner] asked [Frank] Spetrino [an associate of his] if he would help him put the victim in a barrel. That evening, Byers drove the victim [Alex Palmieri], Spetrino and Tamara Thiel, the victim's girlfriend, to the [petitioner's] house. The [petitioner], the victim, Byers and Spetrino entered the [petitioner's] garage, while Thiel remained in the car.

         ‘‘In the garage, the [petitioner] and the victim argued about the [petitioner's] desire that the victim leave Connecticut and reside for a time in Italy, and the victim's refusal to do so. When the matter was not resolved to the [petitioner's] satisfaction, he handed Spetrino an aluminum baseball bat and told Spetrino not to let the victim leave the garage. Thereafter, as the group began to exit the garage, Spetrino struck the victim in the head with the bat. After Spetrino had hit the victim from one to three times, the [petitioner] said, ‘Let's get him in the refrigerator.' Spetrino then began to drag the victim toward a refrigerator that was located inside the [petitioner]'s garage. As he was being dragged, the victim began to speak incoherently, and the [petitioner] said, ‘Shut up Alex. You didn't go to Italy.' When the victim failed to quiet down, the [petitioner] struck him on the head with the bat numerous times. The additional blows made the victim bleed heavily and caused some of his brain tissue to protrude from his skull. The [petitioner], Byers and Spetrino then placed the victim into a large refrigerator, and the [petitioner] closed and padlocked the door. The men then loaded the refrigerator into the back of a rented van, and the [petitioner] and Spetrino drove the van to a parking area near the Pequonnock River, where the river empties into the harbor in downtown Bridgeport. After making several holes in the refrigerator with an axe so that it would sink, the [petitioner] and Spetrino slid the refrigerator into the water and it floated away. Although a police dive team searched the harbor for the victim's body and the refrigerator for a period of five months, the divers could locate neither. The victim has not been seen or heard from by his family or friends since February 6, 1984.'' Id., 508-10.

         The petitioner appealed from the judgment of conviction, and our Supreme Court affirmed the judgment of the trial court. Seeid., 539. Thereafter, on November 25, 1993, the petitioner filed a petition for a writ of habeas corpus, alleging ineffective assistance of trial and appellate counsel in the Palmieri case, and the habeas court, Zarella, J., dismissed the petition. On appeal, this court affirmed the habeas court's ...


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